The District of Columbia Court of Appeals decision in Coalition for Responsible Regulation v. EPA (PDF) rejecting all of the industry and state challenges to EPA’s greenhouse gas emissions rules is an important milestone in U.S. climate change regulation, but certainly not the last word. In its 82-page opinion, a unanimous panel on June 26 denied all of the claims that sought to overturn the EPA’s rules. The court concluded that EPA’s foundational Endangerment Finding — that motor vehicle emissions of greenhouse gas emissions contribute to air pollution and is reasonably anticipated to endanger public health and welfare — and the resulting Tailpipe Rule regulating emissions from motor vehicles, are not arbitrary or capricious; that the EPA was “unambiguously correct” in interpreting the Clean Air Act governing provisions; and that none of the multitude of petitioners had standing to challenge the Timing/Tailoring Rules, which delay and raise the threshold for applicability to stationary facilities.

The court had some sharp words for the challenges, as the Washington Post put it:

In its remarks, the three-judge panel seemed to bristle at the opponents’ argument that the EPA improperly relied on assessments of climate science by the Intergovernmental Panel on Climate Change, the National Research Council and the U.S. Global Change Research Program to support its findings that greenhouse gases contribute to warming, posing a threat to human health.

This argument is little more than a semantic trick,” the opinion said. “EPA did not delegate . . . any decision-making to any of those entities. EPA simply did here what it and other decision makers often must do to make a science-based judgment.

This is how science works. EPA is not required to re-prove the existence of the atom every time it approaches a scientific question,” the court said.

Throughout the opinion, the court references not only the plain language of the Clean Air Act, but also emphasizes the important role played by the U.S. Supreme Court’s 2007 decision in Massachusetts v. EPA in determining the outcomes. The court repeatedly cites to Massachusetts not only as the foundational support for EPA’s initial determination to regulate greenhouse gases as an air pollutant under the Clean Air Act, but also in disposing of several challenges. For example, in rejecting the challengers claim that the EPA should have considered policy concerns in determining whether greenhouse gases endanger public health, the court cited Massachusetts for that decision’s rejection of EPA’s earlier attempt to inject policy considerations into its determination. Similarly, challenges to the Tailpipe Rule on the basis that EPA should have deferred to the National Highway Traffic Safety Administration fuel-efficiency standards, the court referred to Massachusetts‘ rejection of a “near-identical” argument.

The losing states and industry groups already have said they will ask the U.S. Supreme Court to review the D.C. Circuit’s decision, which raises the question whether the 5-4 majority that resulted in Massachusetts has survived the retirements of Justice John Paul Stevens, the author of Massachusetts, and of Justice David Souter. While they were replaced by Justices Sonia Sotomayor and Elena Kagen, with such a close majority and the difficult questions, particularly about standing, that were raised by the challengers in Coalition for Responsible Regulation, it remains to be seen how the current Supreme Court will deal with Massachusetts and its application in Coalition for Responsible Regulation. Moreover, its also likely that, in parallel with the legal efforts, opponents of EPA will redouble their efforts in Congress to roll back the agency’s authority. The success or failure in that arena will depend on the outcome of the November elections.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

"My best business intelligence, in one easy email…"

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Privacy Policy (Updated: October 8, 2015):

hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.